Question 1. For real covenants, I see that the plaintiff must prove different elements to have the burden run with the land versus the benefit run with the land. I have a few questions:
· When we look at a fact pattern, how can we tell if the plaintiff wants the benefit or the burden to run with the land? It seems like the plaintiff always wants both. Does the distinction turn on whether the plaintiff / defendant was party to the original contract?
o E.g., lets assume D1 makes a promise with P1 not to build a pool on his land. If D1 then sells to D2, and P1 sues D2, then P1 must show that the burden runs with the land. But if P1 sells to P2, and P2 sues D1, then P2 must show that the benefit runs with the land. Is this correct?
· What happens if BOTH the promisee and promisor convey their land to somebody else? For example, in the above hypothetical, what if D1 sells to D2, and P1 sells to P2, and P2 tries to enforce covenant against D2? I assume P2 just needs to prove that the burden runs with the land, but are there any additional requirements (for example, privity analysis for both D1-D2 and P1-P2)?
Answer 1.
Maybe the plaintiff always wants both, but the question is does s/he need both. You got it right. There are 4 possibilities:
P1 vs. D1 – P1 doesn’t need to either to run; s/he just needs an enforceable contract (Riley, in some sense, involved this problem)
P1 vs. D2 – Does the burden run?
P2 vs. D1 – Does the benefit run?
P2 vs. D2 – Do both the burden and the benefit run?
In all cases where the running of burden or benefit or both are involved, you need to show vertical privity if the suit is at law (and intent, and touch and concern). In equity you need intent, touch and concern and notice but not privity.
Question 2. I just have one quick question about easements in gross. Is it an inheritable interest?
Answer 2. There's so much conflicting doctrine out there about easements in gross that I would hesitate to make a general statement about it. I rather doubt that any court in the US today would say that easements in gross are not inheritable as a general matter, and the trend seems definitely in the direction of making them alienable. There are, however, some relatively recent cases which have parsed the language of the grant of an easement in gross to find that it was not intended to be alienable.
Question 3. Say A allows B’s land to have appurtenant affirmative easement on A’s land to use driveway. This grant meets the Statute of Frauds requirements. However, B did not record the easement and we are in a state that requires Notice (Recording Act). Say A sells his land to C. C is a bonafide purchaser and did not have constructive or inquiry notice of the easement. No constructive notice because nothing in the recording system and no inquiry notice because he asked A whether there was anything he should know and A said no (C made reasonable inquiry). Is B’s easement void? What can B do?
This question is all about trying to square how notice comes into play with easements.
Answer 3. I think your statement of the vast majority of recording acts is a bit misleading. They do not ‘require notice’. What they say is that a purchaser takes free of a prior conveyance if he has no notice of it. B in your example is now up the creek. I would not say that the easement is void (it’s a bit more complicated than that). I would, however, say that the easement is unenforceable against C. It’s unenforceable against C even if C later acquires notice of it, and it’s unenforceable against anyone to whom C conveys, even if that person is a donee or someone who had notice (this is sometimes called the ‘shelter rule’).
I would, however, question how possible it is to be without notice about the use of a driveway. If the driveway leads to property other than that which the purchaser is purchasing, the purchaser may be held to inquire of the owner of that other property even if the seller lies to him. I would be particularly uncomfortable if all he did was ask the seller ‘Is there anything I should know?’ You posit that this is reasonable inquiry. I’m not sure that it is. Indeed, the seller might not even be lieing; he could just have forgotten, particularly if the driveway wasn’t used very often.
So far as your final question is concerned, to the extent that it is not answered above, I would add (it’s part of the holding of Waldrop, but I think it can be generalized) that the burden is on C to show that he meets the requirements of the statute. That means, as a practical matter, that he is going to have to bring an action if the existence of the easement becomes generally known.
Question 4. Is it true that the existence of the common plan at the time first burdened lot is sold is sufficient to take out of SoF (even if not recorded) and that the Court will imply a negative equitable servitude so long as the owner of burdened land had notice of the restriction? Is seems like the "must be recorded" requirement from Riley is the exception to the general rule.
Answer 4. _Riley_ dealt with the problem that other courts have found troublesome as well. Even if I know that there is a common plan, some courts, of which the _Riley_ court was one, will not impose a restriction on land if no one has ever agreed to it so far as my land is concerned. Courts that allow the covenant to be implied do so by saying that the first deed out pursuant to a common plan imposes the restrictions on all the land in the common plan retained by the grantor. In _Riley_, however, it would seem that the deed in question was the first deed, and there was no record evidence of the common plan at the time that Riley took.
Question 5. If the benefit of a covenant is held in gross (i.e. is personal/doesn’t touch and concern the land), then can the burden of the covenant still run with the land? It seems like this should be the case, but Gilbert's §1255 says that when the benefit is held in gross, courts find that the burden doesn't run with the land.
Answer 5. Gilbert's is certainly right when it says that some courts have said (or implied) that if the benefit is held in gross, the burden won't run with the land. (It is interesting, however, that the two cases that he cites for the proposition (_Snow_ and _Neponsit_) both held that the burden did run, i.e., they found ways to find that the benefit was not in gross. _Richmond_ is clearly to the contrary, i.e., the benefit ran even though there was no showing that the club owned any land to which the benefit attached. So I suppose that my disagreement is with the bald statement §1255 that the non-running of the burden if the benefit is held in gross is the 'majority' rule.
Question 6. According to my notes, the benefit of a covenant that is held in gross and the benefit of an easement in gross can be assigned to someone. But assigning the benefit is different than conveying the benefit, right? Is it correct to think about "assignment" as just letting someone else have the benefit that you would have had - but it still ends with the holder of the covenant/easement dies?
Answer 6. The distinction that you draw here between a 'conveyance' and an 'assignment' is not normally made. 'Assignment' is normally thought to be a species of the genus 'conveyance'. There are cases that hold that the benefit of an esement in gross is personal to the benefit-holder, even though the burden runs with the land. The couple that I know of that say this are so confused that it is hard to know what the effect of the conveyance of such a personal benefit might be. I suppose one possibility would be that they create a kind of easement pur autre vie, i.e., that the interest lasts only so long as the original grantee is alive. I doubt that any court would hold that if the second grantee of the easement died first, the easement reverted to the original grantee. I'm not saying that one couldn't set it up in such a way as to make this happen, but I doubt that any court would so hold just on a categorical basis.
Question 7. You said the notice requirement for covenants running w/ land only exists in equity, but Gilbert says it exists both at law and in equity. Is there ambiguity on this point?
Answer 7. I think that Gilbert's §1216 is misleading when it says the same notice requirement with regard to real covenants also applies to equitable servitudes, and §§1260 to 1263 do little to clarify it. Here's the scoop: The recording act applies to both real covenants and equitable servitudes. Hence, in states that have a notice element in their recording statutes one may defend an attempt to enforce either a real covenant or an equitable servitude on the ground that one took as a bfp without notice under the recording act. But the notice requirement in the case of equitable servitudes is stronger because notice substitutes for privity in equitable servitudes. Hence, the following differences:
(1) The Recording Act is a defense. It must be raised by the defendant, and the defendant has the burden (in most jd's) of showing the absence of notice. (That's a tough row to hoe. It's essentially proving the negative, though it's made easier in some jd's by saying that the burden shifts when the defendant has shown the absence of record notice.)
(2) In at least some jd's (Waldrop v. Brevard was the example that we used), the plaintiff seeking to enforce an equitable servitude must show that the record notice was in the defendant's direct chain of title. Waldrop held that because the interest in that case was an easement, the defendant could not raise a recording act defense even where the evidence of the easement was in another deed from a common grantor. The same doctrine would probably also apply to a recording act defense to a real covenant.
Question 8. The doctrine of Changed Conditions simply applies when conditions have changed so much that it makes a covenant void and calls for a renegotiation between the two interested parties?
Answer 8. It doesn't make the covenant void, at least that's not the way the doctrine is usually stated. It makes the covenant unenforceable in equity. Technically, one can still sue at law. But, normally, perhaps always, there aren't any damages because of the changed conditions. And, yes, nothing prevents the parties from starting out all over again and negotiating another covenant.
Question 9. In the Petersen case, was the main focus on the fact that the courts figure out what easements prohibit by examining the intent of the parties? or was there something more?
Answer 9. In Petersen, the issue was whether this particular kind of negative easement was permissible in CA. The fact that it was well drafted and clear, at least in my view, made it easier for the court to say, in effect: "Let the parties do what they want to do."
Question 10. I was reviewing covenants, and I thought we said in class that at law, there was no notice requirement in covenants. Is this true? Is this against Waldrop, when the court said that had there been a covenant, notice would have come into play? Maybe I just misheard in class.
Answer 10. I think you did mishear, but you are not the first person to ask me this question. My take (and it’s a bit different from Krier’s in Gilbert’s is that there are two quite different things at stake here. (1) There is a notice requirement that is part of the case in chief of anyone who is seeking to enforce a covenant in equity. Proof of notice substitutes for privity of estate in such actions. (2) There is the notice the absence of which will allow a b.f.p. in all but a few jurisdictions to defend against any attempt by the holder of any interest in land to enforce it if the interest is not recorded. All interests in land, easements, covenants (whether enforcement is being sought in law or in equity), an outstanding possessory interest, anything that affects title, are subject to the second requirement. The only exception is the few jurisdictions that have a pure race recording statute, but even there the difference is more apparent than real. Only enforcement of covenants in equity (equitable servitudes) require that the person seeking enforcement prove that the defendant had notice.
Waldrop is complicated because it comes from one the few states that has a pure race recording statute. Hence, Waldrop said that because this was an easement not a covenant no notice was required. The case was further complicated by the fact that the easement was, in fact, in the recording system, but it was hard to find. So what the court was really saying was that even if it was hard to find, it nonetheless fulfilled the requirements of the state’s race statute. It suggested, perhaps it even held, that if enforcement in equity of a covenant had been at stake, the covenant would have to have been found in the plaintiff’s direct chain of title.
Question 11. In assessing whether Cooke v. Ramponi is against Riley v. Bear Creek, we suggested that there was evidence of “part performance” in Riley, but there was no “estoppel”- I’m confused as to the difference between the 2 concepts. Do you have any further clarification?
Answer 11. The line between the two is not sharp, and certainly is not sharp in actual application. We can, however, separate the two conceptually in this way: The issue is whether we are going to enforce an oral agreement that does not comply with the statute of Frauds. We might say, yes, so long as we evidence in the parties’ behavior that gives us evidence as to what the agreement was. X and Y make a sales contract orally that exceeds the statutory maximum. X then ships 100 boxes of red widgets to Y, and Y accepts them. Standard doctrine, as I understand it, says that at least so far as those 100 boxes is concerned there has been partial performance on X’s part, and if we have no independent evidence as to what the price was, we’ll make Y pay the market price for them. That’s partial performance, and in order partially to enforce the contract despite the statute, we don’t need to get into the question whether anyone detrimentally relied on the contract.